Court Enforces Labor Code Section 5500.5 Venue Rules, Reverses WCAB

Saturday, December 2, 2006 | 0

By Jake Jacobsmeyer

The Court of Appeal certified for publication a previously issued decision on venue selection before the WCAB. In Dominos' Pizza v WCAB (Kerr), the court has reversed a WCAB ruling that allowed an applicant to file an Application for Adjudication of Claim at a venue different from those allowed under Labor Code Section 5500.5.

The applicant, who resided in Lompoc, was injured working for Dominos' Pizza, also in Lompoc. The applicant attorney's office is in Santa Maria and the SCIF office handling the file is in Oxnard. All of these locations are in Santa Barbara County with the exception of the SCIF office which is in Ventura County, south of Santa Barbara County. The application was filed by the applicant's attorney at the Grover Beach office of the WCAB which is in San Luis Obispo County (SLO). Lompoc is situated approximately halfway between the WCAB offices in Goleta and Grover Beach. While Santa Maria is located in the northern end of Santa Barbara County, it is much closer to the WCAB district office in Grover Beach than to Goleta.

Defendant SCIF objected to the filing of the case in Grover Beach citing Labor Code Section 5500.5 which mandates the application be filed in Santa Barbara County (Goleta) as all of the statutory criterion for venue were in that county. Labor Code Section 5500.5 requires the application be filed in the county where the injury occurred, the injured employee resides, or where the applicant attorney has an office. The Presiding WCJ in Grover Beach denied the request, without prejudice, on the basis that the location in Grover Beach was closer to the parties than Goleta. SCIF filed a formal Petition to Remove arguing that the closeness of the parties to Grover Beach was not one of the criterion under the Labor Code Section 5500.5 for selection of venue. The PWCJ again denied the request holding that SCIF had not shown "substantial prejudice or irreparable harm" as a result of the venue selection and that Grover Beach was a more convenient forum for the parties than Goleta.

On Reconsideration the WCAB adopted the WCJ's Report and Recommendation holding that the WCJ had discretion under Labor Code Section 5501.6 to allow the selection of Grover Beach on the grounds that it was more convenient to the parties.

The Appellate Court took a different view, however. Pointing out that the mandatory language of Labor Code Section 5500.5 requires the initial filing to be in one of the three venues identified in statute, that court held that it was not up to defendant to demonstrate substantial prejudice or irreparable harm to change venue. Notice that the WCAB had violated its own rule (ADR 10408) in allowing a venue not dictated by Labor Code Section 5500.5 the court ordered the WCAB to grant defendant's petition and order the change of venue.

The impact of this decision is to require the WCAB follow its own rules on the selection of venues at the WCAB and follow the statutory scheme. The WCJ & the WCAB treated the two relevant codes sections as combining to allow selection of venue. The Appeals Court, however, applied the statutory language which requires use of Labor Code Section 5500.5 in filing the initial application and defendant was entitled to have venue selected based on that section and then it was up to applicant to demonstrate a change of venue was appropriate in the case Labor Code Section 5501.6 by making a showing as required under that statute. Labor Code Section 5501.6 allows the court to consider the convenience of the parties and witnesses but requires a showing that the statutorily mandated venue is not as convenient for a significant number of the parties or witnesses, not a single participant.

In this case the only party who was significantly inconvenienced by the proper venue in Goleta was the applicant attorney. The party most inconvenienced by the venue in Grover Beach was counsel for defendant who had to come from the far southern end of Santa Barbara County and travel to Grover Beach in SLO. As a practical matter, there are relatively few cases where this is much of an issue. However in some locations, jockeying over venues by applicant and defense counsel is a frequently played game. This case simply makes the rules clearer.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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